My employer are threatening legal because I'm refusing to work my notice. How screwed am I?

[confusedlady10]

I know I am being a CF but have no choice, so this is NOT about morals and more about where I stand legally.

I've worked for my job for over 8 years (dead end call centre job) but leaving in a week as I got an offer elsewhere. The notice period is 3 months and didn't realise when I told my new employer because I didn't check my contract. Regardless 3 months notice for an entry level poor paid job is excessive, so it wouldn't have made much difference had I been aware as my new employer need me to start ASAP and wouldn't wait 3 months. I took the risk of my employer suing me as they are a multi-billion pound bank that can easily afford to replace me (and are actively hiring now anyway).

I've accrued 100 hours of holiday, and tried to use it up by booking on our work app but every date got declined due to them being short staffed. My manager called me and said they’d try and get around me leaving early by seeing if they can use my holiday or take it out of my final pay. However they said that after speaking to HR if they can’t then I’ll have to work my notice otherwise HR may go down the legal route and refuse to give me my p45 in order to start my new job. I emailed my manager later to tell them I’ve checked ACAS (after having second thoughts) which says they cannot legally use my holiday pay or pay to offset me breaking my contract and would have to sue me instead which I would have to accept them doing as I really need the money.

They haven’t replied so shall see what they say tomorrow (and I still have time to edit my message as it's out of hours and they haven't read it yet). Can HR legally refuse to give me my p45 for this or take my pay from me or refuse to pay me my owed holiday? And if they do take me to court which I cannot afford what is the likely-hood of me messing up my new job and references and do I have any legal help? I’m scared but don’t have a choice as my new job cannot wait 3 months for me to start so have no choice and only got my contract now to give my employer notice.

Many thanks!

I don’t know about overtime but if it is holiday. Why can’t OP start another job while employed and on holiday?!? I work my holidays all the time. It’s my time. If I want to spend it working it’s none of the companies business.

Thank you. Could they refuse and make me bring up a tribunal of any sort? Sorry for these silly questions, I'm still (perhaps) unnecessarily paranoid.

Sadly even if I wanted to, they can't give me any holiday as we are short staffed and my requests got declined via their automatic system. So they may try and keep my holiday or time in lieu they owe me for me breaching my contract.

Well they can’t do that.
And you can easily look at bringing a NMW claim against them if they leave you unpaid for overtime. You’re required to be paid for hours worked.

Honestly, I do think you’re catastrophising a lot of this.

I worked for quite a well known call centre who wanted 3 months notice worked, always understaffed and a high turnover. Manager was awful and I literally handed in my notice with immediate effect, I was told I couldn’t do that but walked out. I got paid what I was due plus holidays and started my new job the week after ☺️

Read your contract in case there's something in there about them offsetting sums they owe you if you break the contract.
Will your departure without notice cause them to lose money? Because they have no-one to give your work to and can't recruit in a big hurry? If not, what would they sue you for? It's highly unlikely that they will sue you. However, they may mess you about with withholding money and delaying the P45, because you've annoyed them.

True but this is holiday so I was scared they won't pay it. I owe money to them (and someone else seperatley for other reasons not relating to work) for a course I did so was hoping they'd take it out of that rather than anything else as I need my pay desperately. I know I'm panicking unnecessarily. I've never been threatened with legal before so quite spooked out whilst waiting to hear back from my manager. Thank you.

Nothing about whether I break the contract, only if I get fired for gross misconduct. Would be surprised if they could put in a clause about withholding pay for me breaking the contract because it goes against what ACAS says. They do say they in my contract they could use my holiday pay for any monies owed (but technically I don't owe them anything until they sue me and prove they lost money I guess?) My job is entry level for poor pay, any old soul could do it and it shouldn't be hard to replace me (they are actively hiring now anyway before they found out I was leaving).

Just start making mistakes and not answering the phone. Let them fore you.

Scared of bad blood and references, I am usually a good employee so they'd know.

Is it holiday pay or toil or both? The two aren’t the same. Accrued but untaken holiday must be paid to you on termination.
TOIL should be taken in the pay period accrued, or paid. This must be paid to you on leaving or sooner - they are exposed to a potential NMW claim from you here.
You don’t owe them anything for skipping your notice until or unless they take you to court (slim to no chance this will happen).
You owing a friend money has nothing to do with this situation - everyone has bills to pay. It’s a totally separate matter.

My first instinct is that this is bollocks all to do with HR. Your manager is probably struggling to hit their targets as there are not enough staff so you leaving is making it even worse. So manager is trying to force you to stay longer by using threats of legal action.

Ok so yes they could sue you, but the cost of doing that v what they would actually get back in a pay out is so neglible it wont be worth their while.

I would hold your position. Manager is just pissed off that you are dropping him/her further in it (I am guessing that more than a few have left that team in recent months?) and making them look bad.

Always follow ACAS advice, they know their stuff. Oh and join the appropriate union for your sector now, before you start your new job. A union membership is a bit like insurance, you hate paying for it right up until you need it, and then it is worth its weight in gold.

Why is it not holiday?? OP says it is accrued holiday hours.

3 months notice is taking the piss. It’s so you don’t leave and it’s ruling by fear which is what HR are doing.
My job is a whole term for my admin job at a private school. We’ve been told this is too long and that a month’s notice is the new notice period. Just leave. Sounds like you’re well out of it if your annual leave is constantly rejected.

You absolutely can sue them and there absolutely is a law saying you can’t give a negative reference unless it’s true. Which it wouldn’t be here - it would be revenge for wanting to leave early. Why do you think HR departments give generic references with just dates of working? It’s because of the risk of legal repercussions if they give misleading or incorrect references.

No I understand, just explaining why I am so desperate. It's holiday pay not TOIL. Thank you.

Have your employers actually threatened to you with legal action though or is this just what acas told you?

Does the contract also say they have to give YOU 3 months notice?

If you work from home could you work both jobs for a short time?

I know everyone is saying your notice is excessive for the role but you have been there for eight years, is it more about your length of service saying three months or is that a standard clause? It doesn’t change anything but I’m curious for the clarity.

I doubt they would actually pursue this.
I worked for a company who threatened this. They did nothing about it. I gave 4 weeks notice.

This

Negotiate with current and future employers and be reasonable. If the new employer really likes you they'll wait and I can't see how annual leave would affect your actual last working day.

Not if the statement of particulars states 3 months.

What awful work ethics! Surely anyone would still carry out their job to the best of their abilities during their notice period? If I Kept to my contracted notice period when leaving a job, I can’t imagine that I wouldn’t continue to work hard until my final day or that my employer could expect three months of poor work!

They can’t withhold your P45, but they can keep hold off it until your contract is finished, so 3 months. And they can give a bad reference for breach if contract.
If they choose to depends on wether they want to put a warning out there for others, or if they don’t care.